from the how-nice-of-them dept

A few years back, we had a post highlighting an absolutely fantastic video by Julian Sanchez about the value of remix culture. The video made a key point that often gets lost in these debates: that remix culture is often more about the culture than the remix, but that copyright law makes that difficult. It focused mainly on a viral remix video that took a song from the band Phoenix, called "Lisztomania," but which was put to video clips of people dancing in various John Hughes films (mainly from the classic scene in "The Breakfast Club.") That was interesting enough, but what was even more interesting was how it then followed that lots of others recreated the video in their own image. So groups got together in various hipster locations (Brooklyn, San Francisco) and created their own videos recreating the dance moves on their own to go with the new song. It was really quite interesting, and showed how important remixing and fair use was to culture, and how it could take something and make more with it.

Fast forward to the present, and even though this video has been up for years, Julian discovered that his original video was taken down on a copyright claim. If you go to it now, you see this:

For what it's worth, this does not seem to be targeted at just Sanchez. In looking around, it looks like a bunch of the "original" videos of the Hughes brat pack dancing to Lisztomania videos are all down with the same message. From this, it appears that it's the publishing company, rather than the band or its label. Kobalt has claimed to be a new sort of publishing company, though this seems like a horrifically old school approach, killing off a popular viral video -- and doubly so with the Sanchez video which almost certainly qualifies as fair use. It was completely not commercial, only used a part of the song, included significant commentary, did not limit the market for the song and clearly was not a replacement.

And, yet, it's gone. Even worse, when Sanchez appealed the takedown, which was rejected, and there appears to be nothing else Sanchez can do:

Note that in this screen, it's not Kobalt, but Glassnote and SME (which I believe is Sony Music). Glassnote is an indie label who released the song, but in partnership with Sony, who handles the distribution.

It's also odd that there doesn't appear to be any further appeals process. After all, just last month YouTube said it had changed its appeals process to avoid exactly this situation. The "old" model allowed whoever made the claim to "reject" the appeal and there was no further action possible. The "new" situation is supposed to require the claimant to file a DMCA notice, at which point the DMCA process takes over.

Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we're introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.

But, as Sanchez notes, there doesn't appear to be any such appeals process available to him (at least not in an obvious manner).

Either way, Glassnote/Kobalt/SME is playing with fire here. First off, taking down such a popular viral video -- one that clearly only served to help promote the song massively -- just seems stupid and shortsighted. But, going further and taking down Sanchez's video commentary on remix culture, which used part of that song seems doubly questionable, seeing as it's almost certainly fair use. It might not be the same issue as the Lenz case, in which Universal Music may get into trouble for issuing a bogus DMCA without properly considering fair use, since it's unclear that any actual DMCA notice was filed (instead, this looks like it was all a problem via ContentID). However, going around and censoring videos that are clearly fair use isn't going to end well. Though, really, YouTube's broken ContentID system isn't helping either.

Case in point: With the DMCA, a content host is required to take down content after receiving a notice from an IP holder claiming that the content is infringing. The alleged infringing party is supposed to be able to file a counter notice claiming non-infringement and have their content restored. Going forward, if the IP holder wants to take further action, they need to get the courts involved. A content host that follows this process should be indemnified against lawsuits for hosting the content, even when it has restored it, and even if the use of the material is later determined to be infringing.

The reality is the law was created in such a way to give every incentive to remove the content and no incentive to restore it. Furthermore, the legal atmosphere being what it is, hosting services are likely to do too much censorship instead of 'just enough' as a way of playing it safe. IP holders, pretty much since forever, have a tendency to scream loud and often about entities who do things that are perfectly legal, but do not comply with their world view.

Google and others are censoring far above and beyond what they are required to do under the DMCA. They are doing this because of vitriolic rhetoric, legal threats, and actual lawsuits from companies and IP monopoly holders that aren't satisfied with content hosts precisely following the law.

There is no middle ground in discussions about IP, except in idealistic and completely theoretical ways. In reality, any monopoly given will be decried as not enough. The holders will kick and scream and complain until they are given more. This is the history that is easily observable and is frankly human nature. The only winning move is not to play.

The beauty of culture is that it should be enjoyed by everyone, it should be shared, it should be adapted, it should be shared again, it should be spun into other areas of culture, and shared some more.

It should never be locked away in a vault where no one can enjoy it without permission or conditions.

Unfortunately, our consumerist world is ruining all things culture and that saddens me.

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Not really the consumers' fault that copyright is so overreaching. Rather, it's the rich establishment locking everything up and buying additions and expansions to the current laws, all for their own gain.

Bitches

YouTube is the bitch of the copyright cartels.

Yes they avoid implementing DMCA law in their dispute system to simply allow such organizations to do censorship galore with no fear of legal retribution.

Sure due to all the abuse going on YouTube does want DMCA in ContentID disputes but would groups like UMG actually allow them? It is easy enough for UMG to say "You add DMCA and we will pull all our videos" which would be a lot of pain to YouTube. UMG has already got burned by DMCA fair use in the Lenz case so they have reason to remind YouTube who's bitch they are.

No doubt due to all the bad publicity YouTube will soon restore this video but for every one that makes the headlines there are one thousand more who do not and thus remain censored.

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YouTube won't even risk wringing the neck of the goose that lays the golden eggs. Put one back up here and there when it gets noisy and let all the others get swept under the rug when no one makes a loud enough sound and the big boys will play semi nice.

Youtube (Google) is not to blame on this one. They are simply doing what they need to so that they do not face the wrath of entertainment industry lawyers. No one wants to see them sued into oblivion so they need to comply with these requests until such times as the laws are reformed.

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No one wants to see Google/YouTube sued into oblivion? I disagree. The publishing, music, and motion picture industries have all made it clear through their public statements and legal actions that they would be delighted to sue Google into oblivion, or to use that possibility as leverage. Either way, lesser UGC hosts and search engines would fall right in line and comply with every demand, no matter how onerous, to filter or pre-screen content, manipulate search results, harshly punish users, and hand over revenue.

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and what do you expect to happen, cause i can tell you. absolutely fuck all! why? because as long as anyone can get away with this behaviour, as long as there is no punishment in place that can and will be taken against them, they will just do as they want!

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While companies can afford the lawyers to fight a case, the individual frequently cannot. Further it is to the advantage of the legacy publishers to kill all ideas of fair use, as it allow automatic take down, and rejection of any appeal.

You don't understand, it is quite logical...

If a copyright holder doesn't actively take down any content that might even remotely help promote the original work (regardless of if it is fair use or not) and their copyrighted work has any sales, then they can't make the argument that any infringing content lost them a sale.

See this way they get to cry about not making money, instead of making money.

It is much better to cry about what you may have lost than to be happy about what you have.

Patrick McKay of FairUseTube.org here. Techdirt has included comments from me about problems with YouTube's content ID system in the past. I have written a response to this situation on my site which you may find helpful. While I was initially cautiously optimistic about YouTube's new appeals process, in practice it has proved far less useful than one might have hoped, thanks to the seemingly arbitrary manner in which the appeal option is made available on new videos but not older ones, and the fact that YouTube requires users to "verify" their accounts with a cell phone before they can file an appeal. I am severely disappointed in YouTube for its clearly halfhearted attempt to deal with copyright claimants unilaterally reinstating false Content ID claims. YouTube should do better than this.

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Personally, I had a bad feeling about this from the start because of this sentence from Google's announcement:

"Based upon feedback from our community, today we're introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute."

I suspected at the time that this meant that the new appeal system wouldn't be available to everyone, and now we're seeing that this is indeed the case. It seems the new system has just allowed Google to anoint a chosen few to be eligible for a reasonable review policy, and the rest of the plebes are just out of luck.

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Look up the numbers, which is now around 70 hours of video a minute being uploaded. This would require on the order of 20,000 people qualified to judge whether or not a video was fair use, or in the public domain.